June 16, 2006

Working around the Electoral College -- which is impervious to constitutional amendment -- through state-by-state legislation. I think it's unconstitutional and doubt that its supporters foresee the strange effects it would have. What would presidential campaigns be like if candidates were basically trying to win through the Electoral College, but also had to worry that some big state that they had no shot at winning might mobilize a high turnout and tip the popular vote?

70 comments:

Well, as I believe I have asked you before, if you wanted to move the country from the electoral-college to more of a popular vote, what are the steps you would advise?

Legally and politically, what would the best strategy be? What would you do tactically in terms of finding cases to bring before courts, or creating legislation?

I like instant runoff voting, which would seem to be a constitutional way of avoiding much of the unrepresentative problems with the electoral college by more closely aligning voters preferences and their electoral college representatives.

What is your take on the constitutionality of instant runoff voting, and how would you advise its supporters?

I couldn't help noticing that little box next to the story called Fast Facts, presumably provided for those too busy to read the short story.

An unfortunate choice of words, as John Anderson's prior job, as reported, is factually inaccurate. Supporters of the plan - including Democrat Birch Bayh, a former Senator, and John Anderson, a former GOP Senator and 1980 presidential candidate - argue it would allow long-ignored states to get attention again in presidential campaigns.

To dave, because small states like the overwhelming power it gives them and so those states would be extremely unlikely to ratify any amendment taking it away. Since you need, I believe a 2/3rds majority in Congress and then 3/4s of the states to ratify, amending away the electoral college seems to be a complete non-starter.

It seems though that the problems of the electoral college might be mitigated through the adoption of instant runoff voting and similar techniques to the point where the electoral college is reformed or doesn't matter as much.

I think IRV probably comes closest to meeting the conditions of Arrow's impossibility. The main concern would be that people have a hard enough time not spoiling a simple "choose one person on this list" ballot, though this could probably be solved by having computer ballot-marking machines.

Jacques: I think we should respect the Constitution, not look for ways to sleaze around it. There are some parts to it that you're going to want respected, so I'd resist discounting the parts you don't like. Amend it or deal with it.

Dave: Do you realize how hard it is to amend the Constitution with respect to anything? If one house of the legislatures of 13 states votes no, it fails. Now, how could you possibly succeed in changing something that would affect the relative power of individual states and would also -- harder to see, but true -- threaten the two party system?

Internet Ronin: The article is also terribly written. It's too short and nevertheless padded. It's written on a low level, yet it's hard to understand. It points to a constitutional problem but doesn't begin to say what it is.

Kind of a strange proposal. I suppose I would guess it is unconstitutional because it is an attempt by some states to creatively “overrule” the electoral systems and votes of other states.

Why don’t they simply campaign to assign electors by popular vote within their own state (not just by congressional district, like a couple of states)? That would be much less complicated, would be clearly constitutional, and would move things very close to a “popular vote” system. They could possibly even do it conditionally on the same terms as this proposal (it doesn’t take effect until states with 270 electoral votes approve it).

The only downside is that extremely partisan (read "safe") red or blue states would be more likely to go for the Popular Vote proposal rather than this one.

If this agreement between the states is okay, what would stop these states with 270 electors from agreeing to all cast their votes for the candidate who got the most popular votes within just those states? That would effectively disenfranchise the remaining states completely. What argument could you make that one of these agreements would be constitutional, but the other not?

In what manner is instant runoff voting sleazing around the constitution? Please be direct and to the point and try to avoid innuendo in place of an actual argument (a connected series of statements intended to establish a proposition.)

Jacques Cuze: “To dave, because small states like the overwhelming power it gives them and so those states would be extremely unlikely to ratify any amendment taking it away.”

I think this is misstated - the Electoral College gives small states disproportional, but nowhere close to “overwhelming” power to elect the president.

“…might be mitigated through the adoption of instant runoff voting and similar techniques…”

Instant runoff voting is a great way to mitigate problems of third party “spoilers” (Perot in 1992, Nader in 2000), but I think it will not come close to eliminating the Electoral College / majority vote issue, which is entrenched in the “winner take all” elector systems most states use. Theoretically, I think someone could even possibly win with as little as 25% of the popular vote today; you just need 50.1% of the popular vote in states that make up 50%+1 of the electoral votes, and you could get zero votes from the rest of the states – instant runoff or no instant runoff.

The Electoral College was created by the original Constitution, and altered somewhat by the Twelfth Amendment, which was ratified in 1803. It was changed again, in 1961, to give electoral votes to the District of Columbia. Although other amendments have been regularly offered to modify or eliminate it, none have been successful.

The composition of the Electoral College was intended to mirror that of Congress; each state would have a number of electors that is equal to the number of representatives and senators it has in Congress.

This set up was not very contentious at the time the Constitution was drafted. Most delegates to the convention had figured that the President would be simply selected by Congress as a whole, in the manner that England had used to select a Prime Minister. After some discussion, it was decided to set up a parallel structure in the form of the Electoral College, because of concern that it would be much easier for, say, a foreign power, to fix an election among Congressmen than among bunches of electors whose identities would not be known until shortly before they were to act (see Federalist 68 (Hamilton)). But the important point is that, whether the President be selected by Congress as a whole, or by the Electoral College, each state would have the same number of electors dealing with the question.

We forget too easily that the basic concept was that the states were electing a President, not "the people." That may be a bad idea in today's world, or it may not (states as such do have a useful role, I think). But our Constitution contemplates that the states, in some fashion, are doing the selecting. If we don't like that, we should change it. While it is pretty clear that the states with much to lose will not go along at this time, that's the deal we made long ago. We should treat it with respect.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

I think the scheme would probably be constitutional. I'm not sure that the constitution imposes any controls on how states pick their electors. It's certainly not in the text.

I also think it makes good policy sense. I don't think most people really feel like there is a big value to the EC, and I think it's really divisive to have a different outcome in the popular vote than in the College. And there are strong fairness arguments for extending the one-person, one-vote principle to Presidential elections (not as a constitutional matter, but as a state-workaround that doesn't offend the text of the constitution).

If each state can decide the best way to pick their electors, and particular states happen to want to give effect to the will of the popular majority, where's the violation?

Ahh respect. Given the tone of some, that concept seems to be lost in the dustbin of history. We live in the day when we better get things our way else. If you don't agree with me, you're a(n) (fill in your favorite vulgarity).

Themes of the posts today include "in-your-face-schooling" and "journalistic challenging of the government at every turn". If you don't like the rules - or can't win by them - change them or ignore them.

Litsskad “If this agreement between the states is okay, what would stop these states with 270 electors from agreeing to all cast their votes for the candidate who got the most popular votes within just those states?”andMarghlar “I'm not sure that the constitution imposes any controls on how states pick their electors.”

Well, there are other considerations that probably come into play, like equal protection. Despite the apparently clear Constitutional reference Marghlar gave, you (for example) probably can’t forbid Americans of French descent from being electors due to the 14th amendment qualifying that right of states to select electors. There is another provision, Article 1, section 10, which forbids states from entering into “any Agreement or Compact with another State” without congress’ consent. That could easily knock down this proposed idea or any other like it, unless congress also signs on.

I wouldn't be surprised if some constitutional scholar could list more problems.

From what I understand of the proposal, no actual interstate agreement exists. Instead, statutes are passed that don't kick in until enough other states have signed on to make it effective. Hence, the compacts clause probably doesn't apply.

Nor should equal protection. Surely it is different for states to pick electors based on who they will vote for, than to pick them on the basis of an immutable characteristic such as national origin. How is this different, under the 14th amendment, from appointing only republicans as electors? Remember that the constitution nowhere expresses a preference for election as the method of choosing electors.

I'm not saying that the argument is a slam dunk, but I am suggesting that there are strong arguments on both side of this issue. Just because a political method is novel, doesn't make it per se unconstitutional.

But the compacts clause thing was clever. Keep bringing 'em, if you got 'em. It'll be a fun discussion.

So Maghlar, if the state of Texas legislature decided to save itself the cost of presidential elections and just cast its electoral college votes for the Republican candidate (whomever that may be), you would consider that to be constitutional? What if you took a state that was closer in popular vote (say Florida or Ohio) and the GOP controlled legislature decided that they would have the legislature "certify" the vote. And based on that "certification" they would award the electoral college votes? Any constitutionality problem with that?

A trivia question I occasionally ask is what is the name of our country. Is it the United States of America or United State of America. Just as Gore's "out of one, many" you would be surprised the number who get it wrong. While you may not like the idea that Texas, California and Florida start with the same 2 initial votes of Delaware, South Dakota and Alaska, that is the rules that we entered the game. The same reason why it would be so hard to change this by amendment is why it is this way. The smaller states feared that they would be swamped by the larger states. The compromise was the congressional structure that gave population size control in one house and one state-two votes in the senate. Then the electoral college which merged the two into one. Imagine if the larger states had immediately tried to reneg on the compromise by this sort of scheme.

As with any constitutional amendment, it is hard, but not impossible. You have to make your case. The fact that you are asking people to lessen the power they now have in return for an ideal you hold dear is admittedly not a strong starting place. But that just means you have to be more persuasive and have more 'right' on your side.

I think that, in terms of structure, the original Constitutional design had it right, a view I hold to so strongly that I would repeal the Seventeenth Amendment, and thus, a fortiori I would oppose the abolition or sidelining of the Electoral College. To the extent that there are defects in the structural aspects of the Constitution - and there are, most signally, the absence of term limits - they are incidental to the fundamental operation of the system, which is wise and beneficial. To disturb that design, I think, is extremely unwise.

I am going to be joining a new group blog in the imminent future, and pursuant to that, I had already been writing a more lengthy post on this subject, and so I think I'm largely going to hold my peace on this for now, so as not to pre-empt that.

John:"if the state of Texas legislature decided to save itself the cost of presidential elections and just cast its electoral college votes for the Republican candidate (whomever that may be), you would consider that to be constitutional?"

The unamended Article II gives the appointment power exclusively to the legislatures of the states. The legislatures may certainly establish binding elections as the means for choosing electors, but they are not required to do so. Today, all have done so, and so the instant question is whether that power, once conceded, can be revoked. For there to be a Constitutional problem with a legislature choosing to replace popular election (which, one notes, was not always the norm in the early Republic, see McPherson v. Blacker, 146 U.S. 1, 29-34 (1892)) with appointment directly by the legislature, that problem must stem from a provision of a later amendment. You thus have twenty-seven choices; which do you suggest is violated, and why?

So Maghlar, if the state of Texas legislature decided to save itself the cost of presidential elections and just cast its electoral college votes for the Republican candidate (whomever that may be), you would consider that to be constitutional? What if you took a state that was closer in popular vote (say Florida or Ohio) and the GOP controlled legislature decided that they would have the legislature "certify" the vote. And based on that "certification" they would award the electoral college votes? Any constitutionality problem with that?

In point of fact, no. I think that all of that would be constitutional, and that is precisely the problem with the electoral college. I agree with Simon that it's hard to find a limiting principle to this in any of the amendments. Number 12 is most on point, but it has nothing to do with it. Nor do I buy an equal protection argument. This is precisely why I don't like the electoral college very much -- because it is permissive of all such undemocratic tendencies.

The Left is always accused of constitutionalizing any prinicple it likes, regardless of the text. Here, I think, is an example of the Right doing likewise. Needlessly, I'd say, since the proposal is unlikely to succeed (it requires states to act directly against their electoral interest), and since the Right has shown that it is perfectly capable of winning popular majorities in national elections.

As it is, I'd favor either this, or a constituitonal amendment to reach the same result. But it shall never be. I'd settle for enacting a constitutional amendment requiring instant run-off balloting in the selection of electors (or even better, apportionment by percentage of the state popular votes). But is any of it likely? No. Apathy and self-interest will reign supreme.

Very Burkean of you, Simon. But in this case, I think unjustifiably so. There are plenty of modern democracies that are successful with alternative systems -- indeed, most are more successful in embodying the national will into a governing body. The US system is a mathematical anachronism, rife with represenational defects. The most salient of which is the failure to hold run-off elections, so that candidates who a majority would prefer not be in the White House (see Clinton in '92, Bush II in 2000) continue to run the country. Such basic failures of democratic process are not, I think, enviable.

If you must muck with a system that works, then the simplest alternative that doesn't require a constitutional amendment or massive collaboration is "proportional voting". Specifically, a state legislature puts in place a process to divide its votes proportionately based on the statewide count. so a close state might go 14 for the winner and 12 for the loser.

Alternately, and just a doable from a management of change perspective. allocate most state electoral votes based on the congressional district winner take all counts and the 2 senate based electoral votes based on state wide winner. Therefore my district went for Kerry and Kerry gets 1 electoral vote, and my state went for Bush (2 votes).

Marghlar,You're sort of provoking me to get into the very debate I want to postpone here. LOL.

Burke wasn't friendly towards change, but he recognized that sometimes, standing athwart it yelling "stop" is counterproductive. He recognized that society is a mobile entity; to be sure (and I'm sure to the frustration of modern liberals), it moves at a glacial pace, but like a glacier, trying to hold it back will not only fail, but may do all the more damage for trying to do so. To that extent, I am not sure Burke would approve of my position.

You say that "[t]here are plenty of modern democracies that are successful with alternative systems . . . [and] most are more successful in embodying the national will into a governing body," but that of course presumes that the "national will should be the arbiter of the Presidency, which is precisely the system that the Framers declined to implement. America is, always has ben, and in my view should remain, a Federal Republic, and so I must reject what I take to be your characterization of Federalism as "represenational defects". I do not see the electoral college or indirect election of Senators as "represenational defects," I see them as fortuitous and highly beneficial buttresses of a federal structure.

I don't go so far as does Jason Mazzone, who has argued that Article V permits only amendments (that is, amendments strictly defined as a change that "remove[s] the faults or errors") rather than wholesale change, but what Mazzone (I think falsely) elevates to a Constitutional command, I think certainly holds true as a normative presumption. Indeed, my view that the basic structural design of the Constitution should not be tampered with in anything other than the most vitally significant and overridingly important circumstances (I am not, therefore, complaining about the Fourteenth Amendment) is part of the calculus that leads me to reject the FMA.

I realize that it would be better to confront this head on, it's just that I've got something going into something much closer to the necessary depths to discuss this properly already in the pipeline.

Having thought about either of my alternatives a bit farther, neither is likely to be implemented in the environment we are in today. why?

They would make the allocation of votes more fair (democratic), but on't be implemented in the state legilatures because it will be against the ruling party's self interest.

Let's take my birth state of California. Written off by the GOP, its huge number of votes is a sure thing for Dems.

Hence Calif, doesn't get much election attention, few campaign promises and no TV money.

However, there are many parts of the state where the GOP can carry Congressional districts and in either of my alternatives would get a major chunk of votes, say 20-25 electoral votes.

BUT, the legislature is controlled by Dem's, who while complaining both about being ignored and not rewarded, recognize that any change to either of my alternatives would be against their long term self interest by giving up 20 electoral votes.

Hence. No change. In fact, I would think that any proportional voting scheme tends to favor the GOP, because it tends to split counts in urban, high vote states, typically democratic already.

Marghlar: Sorry for the confusion, I didn’t really mean to imply that the “Equal Protection” clause had anything directly to do with this issue, just that it was an example of something that will modify any absolute right of the state to decide how to choose electors, with an implication that there may be other possible modifications.

I am no constitutional expert (far from it), but I am not so sure that the “no agreement or compact” clause would not be a problem – simply because the states didn’t have delegates sitting in a room negotiating the agreement doesn’t mean that there isn’t an implicit compact. I would guess there are some federal court cases on this very subject that could shed some light on that.

I would think that a system like Litsskad suggested would be “more constitutional” than the proposed "National Popular Vote"; I would hope any judge would be at least very skeptical of a system that seems to be based on making a complete end-run around the intent of the Electoral College by using votes from other, unrelated states (especially ones not even taking part in this proposed law) to decide which electors to pick.

I can't read the article. Every time I try to open it, my computer locks up.

But I find the comments interesting. There are a number of smart folks here but I wonder how many have read the Constitution?

We have a general presidential election every 4 Novembers by custom and by state law. There is no federal requirement for any election at all. Each state can pick electors in any manner it chooses, including throwing darts at a phone book.

There is no Constitutional bar to a runoff election or any other form the state chooses. There may be some regulatory bars vis the Federal Election Commission.

*IF* a state chooses to hold an election for Prez, there are certain hoops it must jump through at the FEC. But that is entirely different from just deciding not to hold an election.

Ditto Reps and Senators. They are elected by popular vote because of state, not federal laws. There is no requirement that either of them be popularly elected either.

The closest we come to a requirement is that Reps (later amended to add senators) must be elected in the same manner as the most numerous branch of the state legislature. So, if a legislature were to be appointed rather than elected (and that is a state, not a federal prerogative) they would not need to hold popular elections for rep/senator either.

You can read the actual text of the Constitution at http://www.law.cornell.edu/constitution/constitution.overview.html

It always seems to me that there are many more people who talk about the Constitution than read it.

We live in the United *STATES* of America. The founders used that word and they knew exactly what it meant. They did not call us the United Provinces, the United Counties, United Municipalities or anything else. The individual states were, and continue to be sovereign "states" though many people today don't seem to know what the word means.

John,"It always seems to me that there are many more people who talk about the Constitution than read it."

How interesting that you use those words to conclude a post wherein you claim:

"*IF* a state chooses to hold an election for Prez, there are certain hoops it must jump through at the FEC. But that is entirely different from just deciding not to hold an election. Ditto Reps and Senators. They are elected by popular vote because of state, not federal laws. There is no requirement that either of them be popularly elected either." (Emphasis added)

As I have mentioned above, I certainly agree with you about the Presidential election (although I think your discussion of runoff misses Marghlar's point), but you are assuredly wrong to say that Senators and Representatives are elected because of state laws. "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States," Art. I §2, and for almost a century now, Senators have been elected pursuant to the Seventeenth Amendment, which provides explicitly that "[t]he Senate of the United States shall be composed of two Senators from each State, elected by the people thereof."

You, too, John, might be well-served by less talking and more reading.

Drill Sgt:Yup, you are absolutely correct. I deleted a paragraph for brevity in my first post where I had pointed out that a "proportional elector" system would fly like a wingless brick in most of the bluest and reddest states.

I live in Massachusetts, where 30-305% of the voters voted for Bush, but the legislature is gerrymandered to be overwhelmingly partisan democrat, and would probably never approve any plan that had any possibility of giving a Republican candidate a single MA elector.

If you're assuming the small states are the ones with the advantage, you should read John F. Banzhaf III, One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College, 13 Vill. L. Rev. 304, 315-16 (1968). He found that individual voters in the large states have the most influence. It's complicated, but imagine an equally split electorate in California and the one person who breaks the tie. That hypothetical person has a huge effect. So many electoral votes are at stake that the people who determine the outcome are much more important than the people who determine the outcome in a small state. The small state does have the extra votes due to their Senators (the "constant two"). This gives them the psychological solace of feeling important, while the large states actually have disproportionate power to determine the outcome.

Here's my article that revisits the calls for reform that came after the 1968 election. Here's the cite: ELECTORAL COLLEGE REFORM: Deja Vu, 95 Nw. U.L. Rev. 993 (2001). (It's not on line.)

Speaking of Burke, as some commenters above have, Alexander Bickel wrote a book about the Electoral College, in which he quoted Burke. I review Bickel's book in my article. Here's a quote from my article:

"For all Bickel's assertion of interest in the political fate of urban minorities, reading his book, one senses a writer with a deeply conservative instinct. When a society is 'young and pliant, relatively small, containable, and readily understandable,' he writes, 'men can see the scenery shift without losing their sense of direction.' But we - a mature society - would do better to leave in place even institutions that fail to meet the terms of abstract principle (like one-person, one-vote) and that have long disappointed the original intent of the framers; these structures 'challenge our resilience and inventiveness in bending old arrangements to our present purposes with no outward change.' As for the notion that democracy is a 'mystery,' Bickel adapted it from James I's assertion that the king's power is a mystery. To use the old structure, even one little more than an accident, for whatever new needs may arise is far better than to reform the structure. 'Bending old arrangements to present purposes with no outward change' is a wonderful 'secret,' taught by the English, that 'has lent stability to our society and has built strength and confidence in our people.'

"[Footnote] Bickel, as this discussion suggests, was an admirer of Edmund Burke. In his later book The Morality of Consent, Bickel quoted a passage from Burke's Reflections on the Revolution in France (1790): '[It is] with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society.' That passage clearly resembles the argument Bickel himself made about the electoral college. Bickel goes on to defend Burke: 'This is conservatism, no doubt, but what is behind it is not wish, or tired old age, or romantic delusion, or moral obtuseness, or class interest, but good practical wisdom.' Perhaps Bickel meant implicitly to defend himself."

but you are assuredly wrong to say that Senators and Representatives are elected because of state laws. "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States," Art. I §2,

Why not post the entire section, Simon, instead of an selected snippet?

It says:

Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

I think I did mention that an amendment made this apply to Senators as well.

The way I understand this to read is that IF there is a popular election for member of the legislature, there must be a similar election for reps (and, now, Senators). On the other hand, there is nothing in this section requiring any election for anything at all. If state legislatures are selected by town councils, say, Congressional reps and senators, could be selected in the same way.

"The way I understand this to read is that IF there is a popular election for member of the legislature, there must be a similar election for reps (and, now, Senators)"

"Everyone is entitled to their own opinion, but not their own facts." The full section does not modify the import of its first section; the House is elected directly by the people. What you are suggesting is that a state could extinguish the ability of the people to select their members of Congress through the narrowing of the franchise (something that is in any event largely foreclosed by the 15th, 19th, 24th and 26th Amendments), something that is truly a radical, disturbing and entirely unprecedented suggestion when you think about what you're actually saying. And for that proposition, you most certainly will need to cite some support.

Lest I be accused of evasion, though, let me refer you to Federalist 52, to III J. Story, Commentaries §§570-610, Wesberry v. Sanders, 376 U.S. 1 (1964) ("construed in its historical context, the command of Art. I, 2, that Representatives be chosen "by the People of the several States" 9 means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's" - which assumes as a baseline that elections happen at all), and of course the fact that what you suggest has never been done in over two centuries of practise. This is a losing battle for you.

I have very little time right now (maybe I can pick this back up this weekend from Michigan), but when I referred to representational defects, I did mean more the lack of run-off voting, and the winner-takes-all nature of the electoral college. Both run counter to the one-person-one-vote principle within the context of an individual state's choice of electors, and hence seem to be represenatational defects.

The weighting of the college itself is not a defect per se, although it is a deliberate skewing of influence. I'd disagree with Ann and suggest that its most important influence is to advantage the preferences of small states.

I do, however, think that it would be an improvement on the constitutional design to have the president chosen by popular vote. I see few concrete benefits of federalizing presidential choice in the world of today. Most of the things that are important about federalism (local control on issues that do not have a strong national effect) are little effected by how we chose a president. I have yet to hear a strong policy argument in favor of disaggregated choice in this arena.

I followed the link about Instant runoff voting and the writeups that they gave about the voting systems were a bit biased in favor of IRV [not suprising from a site that wants more IRV]. From other sites, such as wikipedia.org, you will get a different take on IRV:

However critics argue that the majority obtained by the winner of an IRV election is an artificial one. This is because there is often a candidate that voters prefer to the winner of an IRV election, but who has been eliminated because of a small number of higher preferences. Advocates of this view argue that a candidate can only claim to have majority support if they are the 'Condorcet winner'–that is, the candidate voters prefer to every other candidate when compared to them one at a time. In fact, when IRV elects a candidate other than the Condorcet winner it will always be that the majority of voters prefer the Condorcet winner to the IRV winner (the only system that always elects the Condorcet winner is Condorcet's method).

IRV is less likely to elect centrist candidates than some other preferential systems, such as Condorcet's method and the Borda count. For this reason it can be considered a less consensual system than these alternatives. Some IRV supporters consider this a strength, because a more radical candidate, with the enthusiastic support of many voters, may be preferable to a consensus candidate.

IRV produces different results to Condorcet and the Borda count because it does not consider the lower prefers of all voters, only of those whose higher choices have been eliminated, and because of its system of sequential exclusions. IRV's process of excluding candidates one at a time can lead to the elimination, early in the count, of a candidate who, if they had remained in the count longer, would have received enough transfers to be elected.

Therefore you can see why some people support IRV, as might get more radical candidates elected (rather than the current more centrist candidates). Also IRV doesn't scale. Specifically, all the votes for a candidate must be collected together and processed using the IRV software to determine the winner. In other systems, the results from smaller elections can be combined together to get the results for the total election.

For more information, Google "Condorcet method" or just look it up on Wikipedia. It fixes many of the problems that would arrise if we switched to IRV, so we should pick the better system from the start.

The article begins by saying that Al Gore won a majority of the popular vote in 2000. That is not true. He won a Plurality which is extremely different especially when looking into mathmatical voting theory which many of these comments have done.

Sorry if someone already pointed this out, I haven't read all the comments and am not trying to steal any thunder, rain on any parades or whatever you do with lightning.

The problem with voting systems is that there are no ideal voting systems much like many things in life. There is actually not a single voting system which in my view gets even remotely close to ideal.

I'd agree that a Condorcet method would be superior to IRV (although it might have to fall back onto IRV or some other method in the event of a condorcet tie).

But clearly, either system is mathematically superior to the current shambles of plurality-takes-all, split-ticket-insanity voting. A fair number of recent presidential contests probably didn't pick the condorcet winner.

hollywood freaks: I'd agree that there is no ideal system. But quite clearly, some are better than others, no? And then, isn't it reasonable to discuss why some methods might be preferable to the system we operate under?

Ann: Thanks for posting the excerpt. It seems to me that a key failure of the Burkean critique in this area is that we have a number of experiments with other democratic systems to look to. Sure, conditions vary from nation to nation, but it is hard to see how the success of more advanced preference-mapping systems is somehow a phenomenon that is not transportable to the US.

Also, would you be willing to fill in why you think this action would be unconstitutional? I'd be interested to read your take.

Marghlar: I don't have a properly structured argument that it is unconstitutional, and I would look at Compact Clause in much more detail before I would compose my argument, but quite aside from that clause, I think it's unconstitutional.

The Constitution directs the states to set up a method to appoint the electors. The National Popular Vote idea does more than appoint them. It tells them how to vote.

Moreover, it openly attempts to change the system into a popular vote, which isn't what the Constitution provides for.

I note that in U.S. Term Limits the states were not allowed to vary the constitutional system for composing the national government. The states that had adopted term limits argued that they hadn't really changed the qualifications for office (which are fixed in the Constitution); they had merely regulated which names could appear on the ballot. (You could still write in the name of the candidate who'd served beyond the term limit.) The Supreme Court made short work of that argument, and I think it would and should similarly reject this new attempt by the states to work around something in the Constitution that displeases them.

There were 4 dissenters in U.S. Term Limits, but their dissent was based on the fact that the states that adopted term limits were only hurting themselves and only affecting which individuals their own citizens could send to Congress. But in the National Popular Vote proposal, we're all affected. That is the most basic kind of federalism problem, and I think even Justices would are strong enforcers of federalism values would reject this attempt to subvert the Constitution by state statutes.

The Constitution directs the states to set up a method to appoint the electors. The National Popular Vote idea does more than appoint them. It tells them how to vote.

Hmmm...it seems like this objection could be worked around. Would it be enough just to pick very partisan electors, who will vote for their candidate no matter what? If you are an elector for your party, are you more likely to vote for your candidate if you can, or to stand on a kind of a weird principle about it? (I'm thinking of the type of partisan loyalist who usually gets picked as an elector, not necessarily you personally...)

Also, don't we effectively tell electors how to vote today? Think of the outrage that a significant defection from the party's candidate would produce. I think electors, as a practical matter, already face very clear expectations.

I'll need to reread U.S. Term Limits before I can really respond substantively to the second part...I'll get back to you on that aspect of it. I have some intuitions right now (largely based around a state's right to make a policy choice in deciding how to select its electors, which should include a claim that the winner of the national vote has a strong moral claim to the office, and that therefore the state is entitled to choose electors to match that policy preference).

Would it be unconstitutional for a state legislature to take back the choosing of electors? (I think it might give rise to a constitutional amendment, but in the interim the question stands). What if they were to pick electors each cycle based on their normative preference for electing the popular vote winner? And if they could do that, why not just pass a statute to save the time?

At bottom, I suspect that what you call the "constitutional system for choosing electors" might well be subconstitutional, a policy choice made by the states. Now, I think there is a fair argument that SCOTUS might be more likely to side with you than with me on such a question, but those who style themselves as originalists/textualists might have an urge to defect to my point of view. Throw in a few liberals with a normative preference for fairer elections, and maybe you can count to five. Or maybe not. That's a hard call.

Marghlar: "Would it be enough just to pick very partisan electors, who will vote for their candidate no matter what?"

That doesn't make sense. Read the article. The state is trying to direct the electors to vote for the other side.

You're right that we've currently lost touch with the idea of the electors thinking about who to vote for, but I don't see how that means the state legislature got the power to direct them to vote for someone other than the candidate they represented on the ballot.

BTW, there's an immense practical problem. Currently, we don't fuss over the returns in any state where it's not enough to change who gets the electoral votes. But if the popular vote mattered, you'd need recounts and litigation in all 50 states. Perhaps in any election the distance between the votes would be close enough to make it worth searching for uncounted votes nationwide. The current system confines the craziness to one or a few states and only in some elections.

It seems to me that a key failure of the Burkean critique in this area is that we have a number of experiments with other democratic systems to look to. Sure, conditions vary from nation to nation, but it is hard to see how the success of more advanced preference-mapping systems is somehow a phenomenon that is not transportable to the US.

This is a good summary of the rationale for popular voting / exotic voting systems, so I'll respond.

Regarding the popular vote, I disagree that the goal of the Presidential election system is to perfectly map the preferences of the entire population as a homogeneous whole into deciding the winner. In the US system, the states are designed in at the ground level. The system assumes that residents of different states will have different and competing interests, and the system is designed to be fair to these competing interests. The current red state / blue state divide should remind us that these differences still exist at a significant level. So why replace a system that recognizes these differences exist and tries to deal with them fairly with a system that blurs over state boundaries? With a national popular vote, a party would be neutral to a proposed policy change that might lose them one voter in Kansas, Wisconsin, Delaware, and Vermont, but gain four voters in New York City. Replace the four New Yorkers with five and the party would benefit. Is that a healthy dynamic at all? It seems like in practice you'd get parties that specialized in mobilizing large, homogeneous populations to vote for them in bulk.

Regarding more sophisticated voting systems, Florida in 2000 convinced me that any system which is not immediately and obviously transparent in its workings is too susceptible to challenge and abuse. If you instituted preference voting, could you do it with a ballot that was at maximum less complicated than the butterfly ballot? Do the preferences even mean anything? Do people routinely have the major candidates sorted in order of preference with any kind of reliability or reproducibility? What about minor parties? Do we honestly trust people's ranking of the Green Socialist Party relative to the Socialist Green Party? Imagine the mess in Florida if Gore had been able to challenge what place he was on some subset of ballots in order to manipulate the mechanics of some voting system. Recall that any system which allows strategic voting allows strategic recounting.

The practical and legal snafus that would come hand in hand with more sophisticated voting systems are enough to scare me off.

The voting system is an implementation of a political system, not just a mapping of preferences onto a winner. A national popular vote would be a natural and logical way to elect the president of a national parliament, in a country that had no meaningful political subdivisions. In a federalized country, it's probably a better idea to run a federalized election.

A national popular vote would be a natural and logical way to elect the president of a national parliament, in a country that had no meaningful political subdivisions. In a federalized country, it's probably a better idea to run a federalized election.

I'm not sure this follows. Most of the virtues of federalism come from some amount of state autonomy in action -- the ability to have spheres of state law and authority outside of federal control. All that seems only tenuously connected to how we should structure a presidential election. It seems to me that it would be perfectly logical to have a federal government of limited powers, which is chosen by a direct national election. Since the federal government exercises direct power over the lives of all US citizens, it makes good sense to give each an equally weighted vote in its chief officials. Otherwise, you end up with inequities, such as the current flow of revenue from populous states to unpopulated states (primarily caused by distorted representation in the Senate).

I like federalism. I also like fair and equitable democratic representation. It seems to me that both could coexist, to a greater degree than they currrently do, by federal electoral reform.

You are more likely to convince me otherwise if you can put forward a normative justification for why my representation (I live in Illinois) should be diluted as compared with residents of Montana. The extra two electors give more weight to their votes than mine. Likewise, their two senators each represent vastly fewer people than do mine. Why do they need the boost (and why should I get the short end of the stick)?

I said: "Would it be enough just to pick very partisan electors, who will vote for their candidate no matter what?"

Ann responded: That doesn't make sense. Read the article. The state is trying to direct the electors to vote for the other side.

Ann, my point is more that it could be structured otherwise, if this was a problem. There could still be a slate of democratic and republican electors, and the state could pick which ones represent the state based upon the result of the national popular vote. How does choosing electors on that basis differ from the current regime, in terms of the degree to which their votes are directed?

In other words, I agree that this proposal has defects (I'm not positive that directing an elector's vote is unconstitutional, but there's certainly a fair argument there). But could it not be made to work, through a solution like what I proposed?

It's a fair point. I think one resonse is to suggest that letting Florida (for instance) decide an election on the basis of a few hundred votes when there was a clear national majority made little normative sense. Why should Floridians be counted so important in that decision?

But plenty of countries have national elections, and it doesn't seem to have ground democracy to a halt. Probably there is only a recount when there is a small margin of error -- most elections aren't so close that errors on one side are likely to swing the outcome. And it would probably be worthwhile to explore some legal reform about how we challenge elections, and how we operate them, in order to streamline any such disputes. A uniform elections code, for instance, coupled with an effort to unify technological approaches to voting, coupled with federal funding to help those states that can't afford to make necessary reforms.

It might cost a little more, but I think it would be fairer and more transparent. I doubt the costs would be so prohibitive as to make it impossible, since many other nations get by with a national election.

Let's say that the costs would not be prohibitive. If that were the case, would you oppose this sort of reform on a normative basis? In other words, do your intuitions on this issue correspond to your constitutional analysis? If so, I'd be interested to hear how you view the issue.

I'm not sure this follows. Most of the virtues of federalism come from some amount of state autonomy in action -- the ability to have spheres of state law and authority outside of federal control. All that seems only tenuously connected to how we should structure a presidential election. It seems to me that it would be perfectly logical to have a federal government of limited powers, which is chosen by a direct national election.

That sounds a lot like my "national parliament plus president" idea, and I agree that a national popular vote would make sense for that government. But again, this is a proposal for political reform disguised as a proposal for electoral reform. You don't like a designed feature of the current Constitution, so you propose to eliminate it by changing the electoral system. As Ann says, it seems like the proper avenue for that is through a Constitutional amendment.

As to why your vote should be diluted relative to a voter in Montana (although it's unclear that it is in practice -- see Ann's reference), I have to refer to a failure of a voting system which is not covered by Arrow: domination of an electoral system by a subgroup which might have interests distinct from the group as a whole, or other distinct subgroups. In other words, the red state / blue state thing. This is actually even more true of the nation at the time of the founding, when Virginia had an enormous population advantage relative to other states. Would you want a political system where the way to power is to cater to Virginia's every desire, and figure that the rest of the South will be naturally aligned with Virginia? Where New England, say, never gets its way at all? What if some divisive equivalent of the slavery issue comes up, where one side is absolutely for it and the other side is absolutely against it? Bear in mind that the national electorate is going to change more slowly than state electorates, so that one party might dominate national politics for 30 years at a pop.

If my scenario sounds like the runup to the Civil War, that's because the Civil War is the most obvious case where federalism failed, and because one of the main reasons it failed was that the federal government was too representative of the national population and not responsive enough to the differing desires of the states. There was an abortive attempt by New England to secede in the Hartford Convention, after all. The Civil War was a lot more complicated and had a lot more bad blood, but the kind of instability that the Hartford Convention represents is a real risk in a federal country which also has politically meaningful subdivisions.

The Hartford Convention is discussed athttp://en.wikipedia.org/wiki/Hartford_Convention

But plenty of countries have national elections, and it doesn't seem to have ground democracy to a halt.

Most countries which have true national elections are comparable in size and population to one or two states. I'd be more persuaded if you could suggest a country which is as large and diverse as the United States where national elections have been successful.

I've always suspected that if the US had settled on a Parliamentary system in 1787, it would have broken up well before the Civil War. Things would just make more sense with the North and South apart than they would together.

Indonesia and Brazil both have direct presidential elections, I believe. Both are young systems, but I don't believe either has come crashing down due to inherent problems with a large national election.

With modern technology, I think scale is not a big impediment.

And I don't really understand your argument re: representation. You write as if the problem is that Virginia gets more representation, but to me that is a logical consequence of its having more people. Why should a resident of a larger state be punished in their ability to hold their own in the political process? I just don't understand the argument.

Re: Ann's article and the way the electoral college is disproportionate in representation:

It seems to me that in a swing state, having more electoral votes is of some value to a voter, because the hope is that their votes will change the outcome of the state race. This is where Ann's cite to Banzhaf seems on point.

However, for most large states, the state is not swinging, but instead is pretty stable. In that case, the problem works the other way. I have little hope of changing any outcome with my vote, but I would hope that my votes (with a majority) would count as much towards my candidate as those against him in a group of smaller states. But the fact is, that the same number of people, if distributed among five other states, get 8 additional electoral votes. In such a situation (where the result is clear within a state) the electoral college seems significantly unfair.

So, depending on the circumstances, the unfairness cuts both ways. But to me, that is just a reason to get rid of the damned thing. It certainly doesn't serve its intended function (electors deliberate to chose a president, or give up and let the House do it). Nor does it serve a strong normative policy.

It seems to me that little more than inertia keeps the College going...and that, sadly, inertia will be enough to keep it in place.

Marghlar: A short answer is that the cure may be worse than the disease. You're not giving the current system credit for many positive effects, such as the maintainance of a two party system, the prevention of extremist candidates, the exclusion of a regional strategy, and keeping the President from further aggrandizing his power.

Marghlar: "Indonesia and Brazil both have direct presidential elections, I believe. Both are young systems, but I don't believe either has come crashing down due to inherent problems with a large national election. With modern technology, I think scale is not a big impediment."

And I don't really understand your argument re: representation. You write as if the problem is that Virginia gets more representation, but to me that is a logical consequence of its having more people. Why should a resident of a larger state be punished in their ability to hold their own in the political process? I just don't understand the argument.

In any long-term partnership where the parties have different goals, you have to be responsive to the goals of all the parties or else expect that some of the parties will seek a better deal elsewhere. Virginia had lots and lots of influence in the early United States, because it was big, rich, and influential in the southern bloc. Seven of the fifteen antebellum presidents were from Virginia.

Now see yourself as somebody from New England or the free-state West. You have perfectly legitimate antislavery arguments that are supported by ~40% of the country, but any realization of those ideas is constantly frustrated because the southern bloc keeps running the country for its own benefit. Compromises to limit the expansion of slavery are consistently broken, and the nation fights an incredibly controversial war which has the effect of adding pro-slave territories which will presumably become pro-slave states. Nobody disputes that the Union produces big benefits over division, but it looks for all the world like the South is gobbling up all the benefits for itself, in large part because it's possible to win the presidency year-in and year-out without appealing to the North at all. If the Constitution had settled on a parliamentary system with a true national election, I could easily see the North concluding that they would be better off as an independent country.

The big states have plenty of influence in the current system. That's the nature of democracy. Illinois, for example, consistently goes Democratic because the Democrats would be utterly screwed if it didn't, so they cater to Illinois desires. Having half of a two-party system beholden to you is a lot of power, even if that half is the losing one at the time. Barack Obama is seen as a possible presidential candidate largely because he represents Illinois, correct?

I think you consistently place too much emphasis on elections and too little on politics when you talk about relative power of large states and small states.

The specific proposal is unconstitutional, not necessarily because it would direct that a state party to the NPV compact bind their electors to not necessarily vote for the candidate that won that state's vote, but because it is a compact. Making a compact with another state, without the consent of Congress, is one of the rights the states gave up as part of Article I, Section 10.

Steveegg: as discussed above, the Compacts Clause may or may not apply, given that the states need not discuss or negotiate any agreement to make this project work; rather, each independently enacts a statute that takes force only if other states, independently, act likewise.

However, if the Compacts Clause does apply, I think there are good normative reasons for Congress to approve this. Not that I would expect them to do so (I think it pretty unlikely, in fact), but I think they ought to.

As to the litigation objection: I think this could be addressed adequately by law reform focused on post-election suits. Such challenges could also be simplified if a more uniform election procedure was followed state by state.

I'd also note that there is some possibility that a national count would deter litigation, because it is rarer for the national election to be very close than for individual states to be in flux in a close election. For instance, although for a while it seemed that Kerry might do well to challenge some results in Ohio, it is doubtful that it would ever have been reasonable to challenge the nationwide totals -- there would just be too little possibility of picking up three million more votes. Likewise, a challenge would have been far less likely in 2000 if it required finding 500,000 more votes for Bush, as opposed to a few hundred more for Gore.

Marghlar: A short answer is that the cure may be worse than the disease. You're not giving the current system credit for many positive effects, such as the maintainance of a two party system, the prevention of extremist candidates, the exclusion of a regional strategy, and keeping the President from further aggrandizing his power.

Is the maintenance of a two-party system a virtue? I'm not sure. I think it has the tendency to dumb down national debate, and stifles the formation of new majority coalitions along non-traditional lines. Right now it is very hard for third-parties to displace either of the major parties, which makes them complacent and less responsive than perhaps they ought to be. I'd like to hear more about why a two-party system is inherently superior to the mulitiplicity of parties that can flourish and compete within a parliamentary system, for instance.

As to extremist candidates: I think they are mostly prevented by the absurdly high cost of running a national campaign one has little hope of winning. I also think that an intelligent use of runoff voting or a condorcet system would remove whatever threat such candidates pose to the process. I'd note that "extremist" candidates don't tend to garner majorities in many democratic systems, even the ones with national elections.

As for regional strategies (and this goes to Zach's points as well): I think there is a fair argument to be made that, in a national polity, a majority's preferences should control within constitutional limits, even if that majority is a regional one. The opposite belief would tend to imply that a minority's wishes, within the political sphere, should trump the majority's, which is an odd result. If a regional minority is excluded over a long period, and is irate about it, that might in fact be a good principled reason to divide the country. Such a division arguably would increase the satisfaction of both regional polity's, allowing for greater overall preference satisfaction. I'm not saying we should pursue or permit secession at the drop of a hat, but the argument that a region should be subject to outside political authority against its will is not one I fully grasp.

And why would a national election so obviously lead to an aggrandizement of federal executive power? I've heard this claim before, and I know it was on the minds of the Framers, but I've never understood why it should follow from a national election. What is it about nationwide vote counting that gives the executive more power?

What is it about nationwide vote counting that gives the executive more power?

State officials have knowledge, understanding, organization and influence over elections at the state level. They get power at the national level because in order to win national elections, you have to win individual state elections.

It's getting a little tiresome working out the theory of federalism post by post. If you're really interested in the subject, you might read the Federalist Papers. I'll summarise my current and future posts by saying it's the system we have now, it works well, and there are legitimate reasons to think it might work less well if states cease to be meaningful political subdivisions in national elections and start being lines on a map with different local governments.

None of the changes proposed in this thread seem very appealing to me. The benefits seem minor and mostly aesthetic in nature. The changes seem potentially destabilizing, and don't seem motivated by concrete problems with the current system.

Thanks, but I have read a fair amount of the Federalist papers. I've repeatedly said that I think there are virtues to federalism, but that I'm not sure that federalism has much to do with the numerically skewed way that we select the president. Indeed, I think that it was a relative afterthought at the Convention to work the question out, and the way it was worked out has very little to do with current practice.

Futhermore, nor is something true solely because it was asserted by Madison or Hamilton. I think they were smart people, but we've had the benefit of more than two hundred years of analysis of comparative experience in various democratic political systems. Surely it is worth exploring whether what we currently do makes sense or not, in light of that experience?

Do you really think it is solely aesthetic to say that we are electing a candidate that a majority of voters would prefer not be in office (both due to the College and due to our abysmal failure to enact some sort of runoff or preference ranking system)? I find that hard to swallow.

You seem to think that current practice should be maintained just because it has a historical pedigree. I'd note that that certainly didn't stop the Framers, who quite rightly thought that some political experimentation was worthwhile in the service of democratic values. Nor did they expect their system to be static -- indeed, they thought there would have to be frequent conventions because people would tinker so often with the design. Indeed, they almost immediately tinkered with the College, when they saw that it produced some unpleasant results; the result was the Twelth Amendment.

If you'd rather not defend the merits of your position, that's fine by me. I'm just saying that to one student of constitutional theory and practice, the merits of this particular mechanism seem hard to detect. We've had a two hundred year trend towards correcting the major democratic defects of the constitution. We now directly elect Senators. We enfranchise a strong majority of the population (not remotely true at the time of ratification or for the first hundred and thirty years). We work to ensure equal access to voting. We've even taken halting steps towards reducing the advantages of incumbency.

To my mind, that looks like a tradition of tinkering and experimentation, which has certainly improved on the original design. In light of those changes, it is getting increasingly hard to justify the College, which was based on a fear of broad public participation in national politics and the physical limitations on communication in the 18th century. We early on did away with the most important aspect of the College -- it's tendency towards elitism by delegating the choice to a small number of decisionmakers. I'd say it's time to finish the job.

Fern: You need to look more closely at who is benefitted by the two systems. Look especially at New York, California, and Illinois, two states with a lot of people that give a lot of electoral votes to the Democrats.

Frankly, I think both parties have to be afraid of the change. All the strategies would have to change. Different people would be motivated to vote too. All those upstate New Yorkers, etc. Don't presume you know how this would fall out. It would radically change the political parties. That might be fun, but I dread changes like this.

Ann: I absolutely agree that this is not a change with clear benefits for either party. Such a consideration has little to do with why I think it is an attractive proposal.

I like the idea of candidates being motivated to try and reach voters all over the country, even in territory that was previously unreachable. Right now, a huge portion of the country is written off, because they are in the minority in non-swing states. Wouldn't it be great to get those people re-engaged in the political process? To make their votes just as attractive to candidates as the tiny margin of swing voters?

Marghlar & Ann--the Republican Guarantee Clause has nothing to do with the Republican political party. It requires the states to maintain the republican system of government (i.e. a representitive system. If states were to grant their electoral votes according to the national popular vote, that would create a democratic, not republican, form of government. The best argument against the RGC not applying to this case is that it was meant only to control the states' own government and not the states' interaction with the federal system.

Fern: My discussion of the two parties is about who would vote to amend the Constitution. I think I mistakenly put your name on that comment though, which was addressed to something someone else had said. Anyway, the Guarantee Clause is something I teach as a lawprof, and I think the argument you're stretching for is bad. For one thing, the courts don't enforce the clause. For another, it refers to the composition of the state government, not the federal government. Finally, the federal government is structured according to specific other clauses of the Constitution, which is what a court would rely on if they were to hold these statutes unconstitutional.